German-American Bank v. Barnes

• Decision Date: 01 May 1916
• Docket Number: No. 11115.,11115.
• Citation: 185 S.W. 1194
• Parties: GERMAN-AMERICAN BANK v. BARNES.
• Court: Missouri Court of Appeals

185 S.W. 1194

GERMAN-AMERICAN BANK v. BARNES.

No. 11115.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Rehearing Denied May 22, 1916.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

"Not to be officially reported."

Action by the German-American Bank against George Barnes. Judgment for defendant, and plaintiff appeals. Reversed, and cause remanded.

D. W. Herring, of Fulton, and Clarence A. Barnes, of Mexico, Mo., for appellant. E. Rosenberger & Son, of Montgomery City, for respondent.

JOHNSON, J.

Plaintiff, a bank doing business in Bloomington, Ill., sued defendant, a resident of Missouri, on a negotiable promissory note for $600 dated February 3, 1915, and payable six months after date to the order of Pioneer Stock Powder Company, a manufacturer in Bloomington of medicinal powders for live stock. The note purports to have been signed by defendant, and bears the indorsement of the payee to plaintiff. It also bears the indorsement, "Given for five tuns of Pioneer Stock powders," which was on the note when it came to the hand of plaintiff. The petition alleges in substance that plaintiff became an innocent holder for value before maturity. The answer, which is verified under oath by defendant, pleads non est factum, no consideration, and that plaintiff became the holder of the note —

"with full notice and knowledge that no valid consideration passed from the Pioneer Stock Powder Company to defendant for said note, and that plaintiff is not an innocent purchaser of the alleged note sued on, before maturity, for value in due course."

The transaction in question was conducted by two agents of the Stock Powder Company with defendant at Montgomery City. The parties signed certain contracts by which defendant was appointed the agent of that company for Montgomery county, and ordered 20,000 pounds of the powder at six cents a pound. The evidence of plaintiff tends to show that at the same time defendant executed and delivered to the agent of the Stock Powder Company his two negotiable promissory notes for $600 each in payment of the purchase price of the powder ordered. These notes and contracts were forwarded to the company, which shipped the goods as ordered, and used the notes as collateral security for money it borrowed of plaintiff in the usual course of business. Defendant admits signing the agency contract and a written order for 2,000 pounds of the powder, but denies signing the notes and denounces the signature on the note in suit as a forgery. At the request of plaintiff the court instructed the jury:

"That the sole question for you to consider is whether or not the defendant executed and delivered the note in suit. And if you find from the evidence that the defendant executed and delivered the note in suit, then you will return a verdict for plaintiff for the sum of $600, with interest thereon from the date of the execution of said note at the rate of 7 per cent. per annum."

And at the request of defendant the jury was instructed:

First, "that if they believed from the evidence in this case that defendant did not sign the note, filed in this case, they will find for defendant"; and, second, "that the burden of proof rests upon the plaintiff throughout the entire case to prove by a preponderance of the evidence — and by that is meant the greater weight of the evidence — that defendant signed the note sued on, your verdict must be for defendant."

Thus instructed, the jury returned a verdict for defendant, and after its motion for a new trial was overruled plaintiff appealed.

The objection urged by plaintiff against the first instruction given for defendant is not well founded. The point of the objection is that the instruction should have required the jury as a prerequisite to returning a...